Citation Nr: 1706225
Decision Date: 03/01/17 Archive Date: 03/16/17
DOCKET NO. 06-34 339 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for a kidney disability.
2. Entitlement to service connection for sleep apnea.
3. Entitlement to service connection for a heart disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Jennifer R. White, Counsel
INTRODUCTION
The Veteran had active military service from May 1973 to July 1976. It appears he also had a Reserve period of service.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
In September 2008, the Veteran presented testimony before the Board; a transcript of that hearing is of record.
The matter was previously before the Board in November 2008, July 2010, June 2012, and February 2016 wherein the claims were remanded for further development. In April 2015, the Board determined that new and material evidence had been submitted to reopen the claim of service connection for a kidney disability. The de novo claim for a kidney disability, as well as the claims for heart disability and sleep apnea, were remanded for further development.
The issue of whether new and material evidence has been submitted to reopen a claim for service connection for hypertension has not been properly adjudicated by the Agency of Original Jurisdiction (AOJ), as discussed more thoroughly below. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2016).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
Adjudication of the claims for a kidney disability, heart disability and sleep apnea on the merits are once again deferred pending proper adjudication of the claim for hypertension. In June 2012 and February 2016, the Board directed the AOJ to adjudicate the issue of whether new and material evidence had been submitted sufficient to reopen the previously disallowed claim of entitlement to service connection for hypertension prior to final adjudication of his claimed heart, kidney, and sleep apnea disabilities.
In a March 2013 supplemental statement of the case (SSOC), the AOJ determined that new and material evidence had been submitted to reopen the claim for hypertension, but the underlying claim for hypertension was denied. The Board reiterates that simply because the issue was included in the SSOC, and is inextricably intertwined with the claims for heart, kidney, and sleep disabilities (the Veteran claims these disabilities are secondary to his hypertension and/or heart condition), does not establish that the Board has jurisdiction of this issue.
To date, the Veteran has not been given notice of his appellate rights nor the opportunity to perfect an appeal of a decision denying the claim for hypertension. The AOJ has yet again failed to comply with the remand orders of the Board. As such, a remand is again necessary to allow the AOJ to properly adjudicate the Veteran's request to reopen his previously disallowed claim of service connection for hypertension. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
Crucially, the claim for entitlement to service connection for the other disabilities on appeal are inextricably intertwined with the pending claim for service connection for hypertension. Therefore, consideration of the claim for service connection for a kidney disability, sleep apnea and a heart condition must be deferred until the intertwined issue of service connection for hypertension is either resolved or is prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together).
Any missing and/or ongoing VA treatment records pertinent to the issues must be obtained upon Remand. 38 C.F.R. § 3.159 (c)(1).
The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. 38 U.S.C.A. § 5103A (b) (West 2014).
Accordingly, the case is REMANDED for the following action:
1. Obtain copies of any ongoing VA clinical records not on file pertaining to treatment of the claimed conditions. All records and/or responses received should be associated with the claims file.
2. After complying with the duties to notify and assist the Veteran, separately adjudicate in a rating decision the issue of whether new and material evidence has been submitted sufficient to reopen a previously disallowed claim of entitlement to service connection for hypertension. The Veteran should be informed that he must file a timely and adequate notice of disagreement and, following the issuance of a statement of the case, substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.302(b). If a timely notice of disagreement and substantive appeal are not filed, the claim should not be certified to the Board.
3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims for kidney, heart, and sleep apnea disabilities in light of all evidence of record. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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M. H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).